Friday, April 24, 2009

RealDVD preliminary injunction hearing gets under way; NPR explores important DMCA case

The preliminary injunction hearing in the studios efforts to keep in place the ban on RealNetwork's "RealDVD" ripping software got under way in San Francisco today before Judge Marilyn Hall Patel -- the same judge who shut down Napster almost a decade ago. Good summaries from the New York Times and Wall Street Journal.

For those who prefer to listen rather than read all about it, earlier today I discussed the case on "The Conversation" on Seattle's NPR affiliate KUOW; my pro-DRM arguments are followed by a rebuttal from EFF's Fred von Lohmann. The audio is available here (including through RealAudio).

My earlier coverage is here. Many of the important documents have been collected by EFF here. The hearing is expected to continue through the middle of next week.


  1. First, full disclosure: I was the program manager at RealNetworks for Facet, the Linux-based version of RealDVD intended for dedicated DVD players which Real disclosed in recent interviews with the NYT. I joined at the very beginning of the project, wrote the initial market requirements document, arranged the licensing for some of the technologies we needed, including CSS, the content scramble system used on commercial DVDs, and planned many of our development activities. I was fired by Real last September. I was subpoenaed and deposed by the studios in February. I testified truthfully under oath but as Ben reported in an earlier blog post, Real was not a bit happy with my testimony.

    Initially, I was pretty excited by the product concept. I’m VERY much a movie buff and personally own perhaps 800 DVDs. I buy more all the time. And when you have as many as I do, a big problem is finding the one you want, e.g., if you have a guest and discover, what?, you mean you’ve never seen Pulp Fiction? So the idea of a DVD player with a hard disk that could store all my DVDs for instant access seemed pretty compelling.

    But it turns out there’s no way to tell if the user inserts a DVD he owns versus one he’s merely rented or borrowed. RealDVD does display a warning that you shouldn’t copy anything you don’t own (wink, wink) but there’s no way to enforce it. And based on some experience that I disclosed in the deposition, I am persuaded that the "rent, rip, return" scenario is indeed pretty likely.

    Not surprisingly, I've been reading all the filings and all the news coverage, curious to see how things might unfold. And it sure looks to me like MPAA has the better arguments and better lawyers. Here were some of the points where I thought MPAA presented better arguments or where Real's arguments seemed to fall flat without any need for a response:

    1. "Authorized copies." Real seems to be saying, if nobody explicitly told me, no, then I'm authorized. That's silly on the face of it from everyday experience. What parent hasn’t been through this one with their kids, for pete’s sake? Authorization is something you get explicitly. And I don’t see how Real convolutes a license from DVD CCA to implement CSS into a license to make copies of copyrighted material owned by the studios. It seems pretty obvious to me that "authorized copies" of a DVD are those that the owner of the copyright decides should be made, e.g., when they contract to a duplication house to have the DVDs made from a master.

    2. Whether Arccos and RipGuard are "effective" copy protection methods. Real argues these aren't effective copy protection methods because it's possible to work around them by following the program chains on the disc and because they don’t use any stronger methods like encryption. But I was there when Real tried to do this. We had our best engineers working on it for months and every milestone, it kept slipping. To me, that does sound effective. I thought MPAA had the better argument, pointing out (as a previous court had found) that it would be a nonsensical position to say the law should only protect methods that can’t be broken no matter what (and thus don’t need protection anyway) but refuse to protect methods that could somehow be broken by determined efforts (and which do need protection.) Btw, I suspect this is where Real is especially vulnerable under DMCA.

    3. The 5-copy limit. I thought MPAA made a good point that this is just window dressing. If RealDVD is found to be legal, what's to stop them later from raising the limit to 100 or 1000 or from sharing movies in ways they prevent right now?

    4. The contract of adhesion. I thought MPAA did a better job. Real argued that ambiguities should resolve in their favor but MPAA argued that there was nothing at all that was ambiguous: Real knew full well what DVD CCA's position was when they entered the contract but chose not to disclose that they had a different view. True. I wasn’t asked at the deposition, but if I had been, I'd have testified that I was told NOT to disclose what we intended to build because Real was scared DVD CCA wouldn’t issue the license if they knew what was going on. As it was, every time we encountered an ordinary bureaucratic delay in the process of arranging the license, there were constant concerns that DVD CCA had figured out what we were up to and was deliberately delaying.

    5. Everyone else is an even bigger pirate. To me, this argument from Real reads like a variation on the "a thousand flies can’t be wrong, eat sh-t" argument. So what if other people are breaking the law? What's to say they won’t be targeted next? I thought this was just lame.

    Also, though we can’t tell from the redacted filings, I expect Real will have trouble on this point:

    6. Compliance with CSS. Real argues they are compliant and points to the fact that they "preserve" CSS on the hard disk. But this is a pretty thin argument if you know even the little bit about how CSS works that's public knowledge. CSS is not just about a scrambling algorithm, there's a whole procedural specification including a requirement for a special handshake with DVD drive that establishes that the software is authorized to access the keys and then unlocks the drive, allowing them to be read from the disc. If you're reading from a hard disk, it stands to reason you're not handshaking with a DVD drive.

    Finally, I was struck by MPAA's decision to waive the Ukrainian hacker flag. I'm not sure the court will care (I just don't know), but it's definitely the sort of thing any OEM thinking about licensing RealDVD would care about. Big manufacturers want to know the pedigree for anything they buy, both because they want to know you own it and have the right to sell it and because they don't want to pay for stuff they also could get for free.

  2. I have a hard time understanding why the MPAA is spending so much legal effort on the cases against RealDVD and Kaleidescape. They may win the legal battle, but the technological battle has been lost years ago. The DRM on DVDs may be "effective" in a legal sense, but it's very ineffective in a technological sense (this is not to say that "DRM never works", just that it obviously doesn't on DVDs). There are several user-friendly programs that will copy (essentially) any DVD to a hard disk and strip the encryption. This software may not be available in US stores, but who buys software in physical stores these days? Besides, there are excellent freeware programs, so you don't have to buy anything.

    If you look at the recent product offerings from the consumer electronics industry, it's fairly obvious to me that there is a demand for DVD copying software. On one hand you have NAS boxes and home servers with huge hard disks (like 4 x 2TB arrays, probably more that you need for family photos). On the other hand there are new hardware media players with network connections instead of optical drives, and the computer industry is selling media center PCs with special versions of Microsoft Window. This stuff is being advertised as a convenient way of enjoying your movie and music collection, and it truly is (speaking from a personal user experience). I'm sure that there are lots of people who buy this hardware and Microsoft software, only to find out that they cannot actually copy their DVD collection to the server because 99.9% of them are encrypted. But then, most people will view this as a technical problem and turn to Google or their friends for an easy solution..

    If the MPAA wants to control this activity and, say, prevent copies from spreading from your home server to your neighbor or even worse a file sharing network (which is understandable), it actually seems counterproductive to sue Real and Kaleidescape since these companies preserve some form of DRM on the copy which prevents further copying.

  3. Nicole I appreciate your connection with Real and your insight. I think some of your points miss the mark.

    Point #1 - you suggest that this contractual notion of "authorized copies" is an issue. It's an issue that has been addressed by the parties, but the question remains whether a purchased DVD, which is an authorized copy, allows the owner of the DVD and licensee of the material to make a copy under the "fair use" doctrine. In other words, can CCA force the relinquishment of "fair use" rights upon the public.

    Point #2 - the issue of effective copy protection likely tips in CCA's favor, but the amount of time spent engineering the problem does not make it any more effective than CSS. CSS was effective until cracked. Arccos and Ripguard were effective until cracked. The fact remains that none of these 3 are effective to thwart copying as of today once the solution is known. Would these three have been effective if Real had simply reverse engineered the code/solution provided by AnyDVD or read about the methodology employed by Ripguard? The question always remains effective against who?

    Point #3 - 5 copy limit. Nothing stops Real from raising this limit. It's just as arbitrary as the CCA's belief that not even one copy by the DVD purchaser is allowed. CCA could specify and enforce a reasonable limit if they wanted to. Note also that there is a 5 copy limit because the Real solution, as it exists, does not permit use of a NAS, making more than 1 copy the only logical solution to viewing throughout the house.

    Point #4 - a contract of adhesion is a take-it-or-leave-it contract. To suggest that this was not a contract of adhesion is akin to suggesting that one can negotiate the student conduct code at college. If you want to go to college, you accept and agree to abide by the conduct code - no negotiations permitted. This was point clearly established at the Kaleidescape trial.

    Point #5 - bigger pirate issue - For equitable purposes, it seems Real was simply trying to establish that it attempted to abide by the contract and that the content copied was now more secure from further copying than when the content existed on the DVD. Not sure why Real focused on what others were doing in the copying realm, but this seems to be more finger pointing than anything.

    Point #6 - preserving CSS - as I understood the argument, Real does preserve CSS. The question is whether the handshake used to unlock CSS is part of the protection scheme covered under the DMCA or is ancillary. This point probably goes in the CCA's favor.

    Your statements, however, suggest to me that you have some bias against Real. There are ways to be truthful without volunteering and you seemed more than willing to discredit Real's positions at every chance.

    My question for you is, with such a large collection, that you paid for, don't you believe that some form of electronic organization of that collection is beneficial to your enjoyment of that collection?

    Consider that the main point of CCA is to stop both an authorized owner of a DVD and a person renting a DVD from making a copy under the guise that the person renting a DVD hasn't paid enough compensation to retain a copy of the movie. In other words, the main position is that CSS and other anti-copy schemes are meant to promote sales and stop rentals and bootlegs from interfering with the sales chain. By purchasing a copy, that goal has been fulfilled so should the purchased copy now be subject to the non-copy provision?

    Finally, you failed to mention that Europe has a system for distinguishing between rental copies and purchased copies and that the system, if implemented by the CCA in the states, would largely moot the parade of horribles envisioned by the CCA. How come you failed to criticize the CCA on this point as strongly as you criticized Real on the other points?


  4. I happened across your comments today, J. I'd like to address several points you raised.

    1. I addressed "authorized copies" as a contractual issue because that was the way Real did it. Real argues that it's never defined in the license. I wanted to comment on that specific point. I was not addressing "fair use," nor was Real. They're just plain different.

    But, yes, I think it is legal under DMCA for the studios to impose restrictions on "fair use" through the use of copy protection. (I use quotes here because I have difficulty reconciling "illegal" and "fair.") For Real, this is an issue regarding ARccOS and RipGuard not CSS. Real does have a license for CSS; they do not have any rights to ARccOS and RipGuard.

    2. CSS was never "cracked" in the usual sense. A company called Xing, which had a license to CSS, introduced a DVD player with a critical flaw that, contrary to the license requirements, allowed access to the internal code. That allowed Drink or Die to disassemble the code, discover the algorithms and obtain a player key. DeCSS was probably based on that disassembly. It wasn't until after DeCSS source became available that anyone realized that CSS encryption is only 40 bits and subject to brute force attack. It's impossible to know if CSS would have been successfully attacked (since obviously there's a whole protocol, not just encryption involved) had the Xing code actually conformed to the license. And there's a rather special irony to the argument that RealDVD should be okay because CSS was cracked anyway because RealNetworks =bought= Xing in 1999!

    3. The movie companies' refusal to allow even a single copy of a DVD you purchase may be arbitary, but there is a difference: Movie companies own the copyright. When their own IP is involved, Real believes they should be able to make these choices, too. If you bought a copy of RealDVD, you only got one copy of that, too, and if you wanted more, you needed to pay for them.

    4. I think the CSS license is a contract of adhesion as well. But I don't think that's very interesting. What I found compelling was DCD CCA's argument that there is still an implied convenant of good faith. You can't conceal the fact that you have no intention of abiding by the understanding you've deliberately allowed the other party to rely on in entering an agreement. Real knew DVD CCA's position was that the license required that you had to have the DVD in the drive to play the movie and Real knew they had no intention of abiding by that requirement, but they didn't tell DVD CCA. Kaleidescape entered the license agreement before DVD CCA made their position clear and began litigating the issue, so they had an excuse.

    5. Re: marking DVDs to distinguish rental versus purchased copies, this was never something we talked about during development of the product. It was dreamed up for the court. And what of it? Why should Real get to dictate how the movie studios package up their movies? And on the stand, Rob G. pretty much conceded that the whole idea was only half-baked and that he had no idea what it might cost to implement or how it might affect the way studios handle remainders, etc.

    Finally, regarding my possible "bias," I don't know what there is to say that I haven't already disclosed. Yes, they fired me and, no, I don't think I deserved that. I don't hide my identity or anything else. But it's precisely because I'm aware of my personal involvement that I've tried to stick to the legal arguments available to anyone.

    But don't we all live in glass houses? You say that when you buy a movie, you've "paid enough." That sounds like bias to me; it's definitely not a legal argument! What else would we learn about =your= bias if only we knew your real identity, what you do and where you work?


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.